11/14/2004

I am generally not a fan of fisking. But Michael Kinsley’s op-ed this morning, titled Who Are the Activists Now?, screams to be fisked. It is so full of muddled reasoning and poor arguments that we’re going to have to take it apart completely.

What does President Bush mean, if anything, when he says that his kind of judge “knows the difference between personal opinion and the strict interpretation of the law”? Every judge sincerely believes that he or she is interpreting the law properly.

Bush’s complaint must be understood in the context of Republican Party history over the last half-century. Ever since Chief Justice Earl Warren and Brown vs. Board of Education (the 1954 school desegregation case), conservatives have complained about “activist” judges and justices who allegedly imposed their own liberal dictates on the country with no legal basis. Taking up this rallying cry is one way Republicans won the South. Even Southern conservatives don’t publicly complain about Brown anymore, of course. But denouncing activist judges is now Republican boilerplate.

Apparently the theme of the op-ed is “activist judges.” Keep this in mind, because Kinsley loses his focus later in the op-ed.

Judges make decisions and impose their will all the time. That’s their job. When does this generally salutary activity turn into the dread judicial activism? If activism has any specific meaning, it means judges overruling laws and policies put in place by the democratically elected branches of government. It also refers to federal judges overruling policies enacted by the individual states.

Kinsley’s characterization of judicial activism is incorrect, although it is a typical liberal strawman way of characterizing activism. This definition allows liberals to claim that conservatives are “activists” too, because they overturn laws enacted through the democratic process. But that’s not what activism is.

Activism is not simply the striking down of laws or policies, and judges are not “activists” when they employ the text of a constitutional provision to invalidate a law enacted through democratic principles. Activism occurs when they stray beyond the constitutional text to fashion open-ended principles which they can use to strike down legislation whenever it offends them.

George W. Bush may get to appoint as many as four Supreme Court justices, including the chief. But the complaint about liberal activism has been quaint for decades. All three chief justices since the “activism” fuss began were appointed by Republican presidents. Earl Warren, it’s true, was a bitter surprise to Republicans, but Warren E. Burger was not, and William H. Rehnquist was a positive delight. Liberal judicial activism peaked with Roe vs. Wade, the 1973 abortion decision (which Burger supported), and has been in retreat now for longer than it lasted.

Kinsley’s argument is that Republicans cannot complain about decisions issued by a Court whose Chief Justice was appointed by a Republican. It’s a silly argument. Kinsley knows it matters very little who the Chief Justice is. Their only real power is to assign opinions; otherwise they are simply one of nine votes.

The silliness of the argument quickly becomes apparent, due to the example of Earl Warren. Then Kinsley notes that Warren Burger supported Roe. So why is the identity of the Chief so important again?

Complaints about judicial activism are a habit left over from powerlessness. They seem especially retro when held up against today’s ambitious Republican judicial agenda. With one apparent exception, the major items on it are demands for federal judges to override Congress or states’ rights. Republicans cheer, for example, when courts overturn state or federal — or even private — affirmative action programs, and they boo when such programs are allowed to continue unmolested. They have great hopes — largely unrealized, so far — for the “takings” clause of the 5th Amendment as a tool for overturning environmental regulations or any other government policies that may reduce the value of someone’s property.

Again, this entire passage is premised on the theory that activism is defined as overturning laws and policies put in place by the democratic process. I have already explained that this is a fallacy.

There is even a move afoot in the Senate to have Democratic filibusters against Bush’s judicial nominees ruled unconstitutional. That would be activism squared.

We could argue about that — but what is inarguable is that it would not be judicial activism, which is what I thought the op-ed was about. The “move afoot” is to declare such filibusters unconstitutional as a matter of Senate rule interpretation — not by filing a lawsuit. Even if Republicans did file such a lawsuit, I suspect that judges would declare the matter a “political question” and leave it for the Senate to decide. (And Kinsley would probably call that judicial activism!)

And let’s not forget that the Bush administration owes its very existence to the boldest act of judicial activism in a generation: the Supreme Court ruling that settled the 2000 presidential election dispute. Bush vs. Gore made imaginative use of the 14th Amendment’s equal protection clause to reverse the Florida Supreme Court’s interpretation of its own election laws.

But by all means let’s all forget that, according to numerous media reports, the recount halted by the Supreme Court would have resulted in a Bush victory anyway. This is just another attempt to keep alive the myth that the Supreme Court “selected” Bush, and that Al Gore “really” won.

It’s revisionist history, but Big Media knows that if you say anything enough, it becomes The Truth. Kinsley is just doing his part to help spread the Big Lie.

Republicans will protest, sincerely if not always correctly, that these examples are all legitimate interpretations of the Constitution and not just invitations for judges to take a power trip. But that’s the point. One person’s constitutional interpretation is another person’s judicial rampage. Neither party has a magic formula for determining which is which, and, in practice, neither has been able to resist trying to enact its agenda through judicial fiat when it gets the chance.

The apparent exception to the activist nature of the Republican judicial wish list is abortion. Although I am pro-choice, I was taught in law school, and still believe, that Roe vs. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching. I also believe it was a political disaster for liberals. Roe is what first politicized religious conservatives (while cutting off a political process that was legalizing abortion state by state anyway). Three decades later, that awakened giant controls the government.

Kinsley and I agree on this: regardless of one’s views on abortion, any honest person who has looked into the issue closely is forced to admit that Roe was a terrible decision — unprincipled, activist, and politically disastrous.

The honest next step for Kinsley would be to admit that Republicans like me, who want to see Roe overruled, aren’t really calling for anything that outrageous or frightening. It would be a truly courageous and startling thing for a liberal like Kinsley to acknowledge this. The building blocks for the admission are right there in the last paragraph quoted above. After all, there is nothing wrong with conservatives’ desire to see an “authentic example of judicial overreaching” off the books before its pernicious effects spread any further. Since the political process “was legalizing abortion state by state anyway,” there would not be a huge proliferation of back-alley abortions, even without Roe.

But rather than come out and say this, Kinsley slides off to a side topic: the desire of some Republicans to see abortion outlawed entirely, through legislation. It’s a nice topic, but it has nothing to do with judicial activism. (What’s more, it’s not going to happen through the political process anyway — not in a country that supports abortion rights as strongly as ours does.)

Why the sudden detour? I guess that it was a problem that Kinsley’s sudden burst of honesty had him headed down the path towards sanctioning efforts to overrule Roe. Accordingly, it was necessary to change the subject somehow, even if the new topic has nothing to do with judicial activism:

But has anybody read the 2004 Republican platform on abortion? It doesn’t merely call for reversal of Roe vs. Wade. It calls for “legislation to make it clear that the 14th Amendment’s protections apply to unborn children,” and for judges who believe likewise. How’s that for activism? If fetuses are “persons” under the 14th amendment, which guarantees all persons “equal protection of the law,” abortion would be illegal whether a state or the Congress wanted to keep it legal it or not. More than that: There could be no legal distinction between the rights of fetuses and the rights of human beings after birth. So, just for example, a woman who procured an abortion would have to be prosecuted as if she had hired a gunman to murder her child. The doctor would have to be treated like the gunman. And that includes capital punishment in states that have it. And the party that now controls all three branches of government says this is already the case. Only legislation is needed to “make it clear,” and judges are needed who will enforce it.

That last phrase is a pathetic attempt to pretend that we’re still talking about judges. But if legislation — which, given Roe, can mean only a constitutional amendment — can be passed to outlaw abortion entirely (and it can’t), then it wouldn’t take “activist” judges to enforce that legislation. They would need only to apply the law as written.

But no “activism,” please. The Republican Party can’t stand that.

And the requisite snarky ending, to cover up the logical weakness of the preceding paragraph.

All in all, the op-ed is much like Kinsley’s description of Roe: “a muddle of bad reasoning.” It’s a shame, because it could have been much more — if Kinsley had stepped up to the plate and said: Roe should be overruled, but we need to keep freedom of choice through the political process. That’s an argument that I would disagree with, but I’d respect it. Instead, Kinsley came right to the brink of honesty and courage — but took a lazy detour into knee-jerk Scheer-style liberal complaints. Too bad.

4 Responses to “Fisking Kinsley on Judicial Activism”

Actually, I think that the muddled reasoning is pretty much all yours. Despite the Fisk format, you actually have only a few criticisms of Kinsley, which are themselves not soundly based.

1. Your quibble with Kinsley’s definition of judicial activism is unconvincing. Yes, referring only to striking down legislation is an inexact definition, because, as Kinsley himself acknowledges, that can be soundly based, even inexorably dictated, by a constitutional provision. So Kinsley perforce agrees with you that it is only where the the striking down is not soundly based that it constitutes “activism”. The problem is, as Kinsley acknowledges but you do not, that whether an opinion is firmly based on the Constitution or relies upon an open-ended, made-up principle, is itself largely a matter of political opinion. This is true in part because so many constititional clauses contain language which is necessarily open-ended. Thus the Eighth Amendement nowhere tells us what punishments are “cruel”, much less “unusual”, nor does the Fifth Amendment tell us how much process is due, etc. (The originalist attempt to fill these voids by reference to what was considered “cruel”, for example, at the time, not only involves (almost inevitably) the torture (itself cruel and unusual) of historical sources to fit the argument made, but is downright silly to boot. The Framers were the best writers of political prose who ever lived and if they had wanted to proscribe drawing and quartering they knew exactly how to say so; they deliberately used open-ended phrases which they necessarily knew would have to be given content by succeeding generations.)

2. As to Bush v. Gore, it is scurrilous of you to attack Kinsley for propagating the Big Lie that the 2000 election was stolen, when he nowhere does any such thing. All he says is that Bush v. Gore is a flagrant example of judicial activism, which is indisputable. Of course to you it seems that it can’t be activism if it was constitutionally sound, but that’s Kinsley’s whole point. The argument about the “activism” of Bush v. Gore has nothing to do with whether it was correctly decided. Kinsley never even says it was wrong, just that it was activist. Courts faithful to the principle of judicial restraint don’t stop recounts in elections expressly delegated to the states by the Constitution. Whether you like the result depends entirely, it seems, on whose Bush was Gored.

3. Yes, you are tecnically correct that Kinsley’s criticism of the administration’s forthcoming effort to prevent abortion from being decided by the states, as it was before the incorrectly-decided Roe v. Wade, is about Congressional radicalism, not judicial activism. But it is still highly anomalous for an administration allegedly committed to “federalism”, preservation of the federal-state balance and “small government” to engage in such an effort at all. It drives home that point that the Bush Administration is not in fact genuinely conservative. It is merely illiberal, which is not quite the same thing.

Sorry, but the muddled reasoning is Kinsley’s — and now yours. Read more carefully.

So Kinsley perforce agrees with you that it is only where the the striking down is not soundly based that it constitutes “activism”.

“Perforce” he should — but he doesn’t. Re-read his piece. He says:

If activism has any specific meaning, it means judges overruling laws and policies put in place by the democratically elected branches of government. It also refers to federal judges overruling policies enacted by the individual states.

Nothing in there about whether it’s soundly based or not. Sure, later in the piece he argues that whether something is activism is a matter of political opinion. So? That argument is consistent, not inconsistent, with his decision to define it the way he did: it’s striking down laws and policies enacted through the democratic process — regardless of whether the decision is correct (because the correctness of the decision is too open to debate, being a matter of opinion).

As to Bush v. Gore, it is scurrilous of you to attack Kinsley for propagating the Big Lie that the 2000 election was stolen, when he nowhere does any such thing. All he says is that Bush v. Gore is a flagrant example of judicial activism, which is indisputable.

Sorry to be so “scurrilous,” but: wrong again! Let’s go to the source one more time:

And let’s not forget that the Bush administration owes its very existence to the boldest act of judicial activism in a generation: the Supreme Court ruling that settled the 2000 presidential election dispute.

That, my fine feathered friend, is an assertion that but for the Supreme Court’s intervention, there would be no Bush Administration. And that is the Big Lie.

In short, you are well-spoken, but based on your comment, I conclude that your reading comprehension skills don’t match your writing skills.

I have had debates with people like you before, and it generally ends up being a huge pointless time-suck. So if you should happen to come back and make the same points in different words — or even make different points based on equally egregious misreadings of texts — I hope you’ll forgive me if I don’t necessarily respond to them. I *might*, but if the comment falls in the described category, I might not. I have better things to do with my life than explain to people that words mean what they say.

Bottom line: do us all a favor and re-read Kinsley’s actual piece before commenting further, to make sure that your characterizations of his arguments are not (like those in your previous comment) easily refuted by simply quoting what you are characterizing.

You might also have pointed out that Kinsley provides no reasoning to characterize the Supreme Court’s Bush v Gore decision as activist. He’s not using his criterion of overturning state or federal laws. He’s criticizing the constitutional reasoning of the decision:

“Bush vs. Gore made imaginative use of the 14th Amendment’s Amendment’s equal protection clause to reverse the Florida Supreme Court’s interpretation of its own election laws.”